Gonzalez v. Hirschman et al
MEMORANDUM OPINION AND ORDER re: 47 MOTION for Summary Judgment . filed by Vargas, Mark Hirschman, Peter Dauria. For the foregoing reasons, Defendants' motion for summary judgment is granted in its entirety. The Clerk of Court is directed to enter judgment in favor of Defendants and to close this case. (Signed by Judge Gregory H. Woods on 1/31/2017) (anc)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
BRONX COUNTY HALL OF JUSTICE
COURT OFFICER MARK HIRSCHMAN
SHIELD 7421, in his individual capacity, BRONX :
COUNTY HALL OF JUSTICE COURT
OFFICER CAPTAIN ROBERTO VARGAS, in :
his individual capacity, BRONX COUNTY HALL :
OF JUSTICE COURT OFFICER PETER
DAURIA TAX REGISTRY NO. A7123, in his :
DOC #: _________________
DATE FILED: 01/31/2017
GREGORY H. WOODS, United States District Judge:
Plaintiff, Christina Gonzalez, was arrested three times at the Bronx criminal courthouse
while protesting the New York City Police Department’s “Stop and Frisk” policy. She claims that
the court’s officers arrested her in order to chill the exercise of her First Amendment rights, and that
the officers used excessive force against her. Ms. Gonzalez filed this action under 42 U.S.C. § 1983,
alleging false arrest, the use of excessive force, and First Amendment retaliation against three court
officers involved in her arrests. Because the Court finds that there are insufficient facts to support
Plaintiff’s excessive force claim, and because the Court finds that the arresting officers had probable
cause—or at least arguable probable cause—to arrest Ms. Gonzalez on all three occasions,
Defendants’ motion for summary judgment is GRANTED.
A. Factual Background1
The salient facts regarding Plaintiff’s arrests are largely not in dispute. Ms. Gonzalez
repeatedly protested the NYPD’s “Stop and Frisk” policies in demonstrations at the criminal
courthouse in the Bronx. First Amended Complaint (“FAC”), Dkt. No. 13 ¶¶ 1, 8; see also Pl.’s
Local Rule 56.1 Responsive Statement (“Pl.’s 56.1), Dkt. No. 59. As a result of her protests, Ms.
Gonzalez was arrested by court officers on three separate occasions, each of which is described
1. The February 1, 2012 Incident
Ms. Gonzalez was at the courthouse on February 1, 2012 to observe a scheduled hearing.
Pl.’s 56.1 ¶¶ 6-7. Ms. Gonzalez was not the only person in attendance; a large crowd formed outside
the courtroom, including attorneys, the media, and members of the public. Id. ¶ 12.
Court Officer Mark Hirschman was on duty that day. Id. ¶ 6. While patrolling inside the
courthouse, Officer Hirschman saw Ms. Gonzalez and noticed that she was holding a cellular phone
with video recording capabilities. Id. ¶ 8. Based on this observation, Officer Hirschman believed
that Ms. Gonzalez was recording the events taking place inside the courthouse and directed Ms.
Gonzalez to stop. Id. ¶ 9. Shortly thereafter, Officer Hirschman noticed that Ms. Gonzalez was
holding a device with audio recording capabilities. Id. ¶ 10. Pursuant to a Unified Court System
(“UCS”) policy, “[d]evices with the ability to record audio, still images or video shall not be not
permitted in the court facilities and courthouses and must be vouchered until the conclusion of the
owner’s court business.” Id. ¶ 11. The “provision does not apply to cellular telephones with
auxiliary cameras or recording devices, provided that these devices are not used to take picutres or
otherwise stated, the following facts are not disputed for purposes of this motion, or are taken in the
light most favorable to Ms. Gonzalez.
record proceedings in the courthouse.” Id. Accordingly, Officer Hirschman informed Ms.
Gonzalez that her recording device was not permitted within the courthouse. Id. ¶ 10.
The parties disagree regarding precisely what happened next, but do not dispute that Officer
Hirschman told Ms. Gonzalez that she must leave the premises or be subject to arrest. Id. ¶ 12; see
also Decl. of Paul L. Mills (“Mills Decl.”), Dkt. No. 58, Ex. 1 (“Gonzalez Dep.”) 127:20-128:2.2 Ms.
Gonzalez refused to leave the courthouse, and Officer Hirschman arrested her. Pl.’s 56.1 ¶¶ 13-14.
According to Ms. Gonzalez, her “wrist was grabbed,” she was “thrown against the wall,” and was
then “dragged down the [courthouse] hallway in handcuffs.” Gonzalez Dep. 125:17-24. But Ms.
Gonzalez did not sustain an injury as a result. Decl. of Michael Berg in Supp. of Defs.’ Mot. for
Summ. J. (“Berg Decl.”), Dkt. No. 52, Ex. N (Pl.’s Resp. to Defs.’ First Set of Irrogs.) ¶ 5. Although
Ms. Gonzalez stated that the handcuffs were tight and that she had marks on her wrists, she did not
seek medical attention following the incident because she did not want to “waste a doctor’s time on
something like that.” Id. 137:16-23; 178:12-24; 289:3-11 (stating that she had “marks on [her] wrists
and on [her] arms” and that “pretty much any time [she is] arrested, [she] ha[s] some kind of bruises
or something”); see also Pl.’s 56.1 ¶ 17.
As a result of the February 1, 2012 incident, Ms. Gonzalez was charged with (1) resisting
arrest in violation of New York Penal Law § 205.30; (2) obstructing governmental administration in
the second degree in violation of New York Penal Law § 195.05; (3) trespass in violation of New
York Penal Law § 140.05; and (4) disorderly conduct in violation of New York Penal Law
§ 240.20(1) and (6). Pl.’s 56.1 ¶ 20. Plaintiff ultimately accepted an adjournment in contemplation
of dismissal (“ACD”) of those charges. Pl.’s 56.1 ¶ 21.
Certain portions of Ms. Gonzalez’s deposition were submitted in support of her opposition to Defendants’
motion to dismiss. See Dkt. No. 61-1; other portions were submitted in support of Defendants’ motion to
dismiss. See Dkt. No. 57. This opinion will refer to both portions as “Gonzalez Dep.”.
2. The April 10, 2012 Incident
Ms. Gonzalez’s second arrest at the courthouse took place on April 10, 2012. Court Officer
Peter Dauria and Sergeant Roberto Vargas were on duty that day. Id. ¶¶ 22-23. Ms. Gonzalez
entered the courthouse wearing a red shirt with the inscription “Warning: Stop + Frisk Kills” and a
button with a similar inscription. Gonzalez Dep. 204:10-21; 205:11-17. As part of the courthouse’s
standard security measures, Ms. Gonzalez placed her bags on the x-ray machine for inspection.
Pl.’s 56.1 ¶ 25. During the x-ray security procedure, Officer Dauria noticed Ms. Gonzalez’s shirt
and button, and instructed her to remove the button and to turn her shirt inside-out to obscure its
message. Gonzalez Dep. 216:6-15. Sergeant Vargas, who made his way to the security post,
concurred with Officer Dauria’s instructions. Id. 217:6-218:12. Ms. Gonzalez objected, agreeing to
remove the button since it could be used as a weapon, but refused to change her shirt or wear it
inside out. Id. 218:4-12.
The officers then focused on the contents of Ms. Gonzalez’s bag. Id. Pursuant to a UCS
policy, court officers must monitor personal items scanned in the x-ray machine, “search[ ] the
visitors’ bags as warranted by circumstances; and follow[ ] as appropriate.” Pl.’s 56.1 ¶ 24 (internal
quotation marks and citations omitted). During the x-ray scan, Officer Dauria observed several
metal items in Ms. Gonzalez’s bags, conducted a search of the bags for contraband, and found a
canister of pepper spray. Id. ¶¶ 25-26. Defendants point out that the canister did not have the
proper label required under the New York State Health Code; Ms. Gonzalez does not dispute that
fact, but maintains that she legally purchased the spray at a pharmacy in Manhattan and that the
canister had a small tag warning carriers from touching their eyes if their hands came into contact
with the contents. Id. ¶ 26; Gonzalez Dep. 206:12-24, 220:17:221-15. Officer Dauria and Sergeant
Vargas then informed Ms. Gonzalez that they had to confiscate the pepper spray. Pl.’s 56.1 ¶ 27.
Ms. Gonzalez objected to the search and believed that Officer Dauria and Sergeant Vargas
had targeted her because of the message on her shirt. Gonzalez Dep. 223:2-16. It was Ms.
Gonzalez’s position that she had the right to carry the pepper spray and that she needed it for her
own protection. Id. Ms. Gonzalez’s made her objections audible to the people in the vicinity; she
was “speaking loudly enough that everyone could hear [her].” Id. at 220:6-16. Sergeant Vargas
asked Ms. Gonzalez to lower her voice, but Ms. Gonzalez refused because she “want[ed] everyone
[there] to understand what was happening.” Id. 223:16-23. At that point, Officer Dauria arrested
Ms. Gonzalez for disorderly conduct in violation of New York Penal Law § 240(2) and (5) and
unlawful possession of pepper spray in violation of Section 54.3 of the New York State Health
Code. Pl.’s 56.1 ¶ 30; see also Berg Decl., Ex. L.
3. The July 12, 2012 Incident
Ms. Gonzalez’s third arrest at the courthouse took place on the afternoon of July 12, 2012.
Ms. Gonzalez, accompanied by another person, was standing on the sidewalk outside the
courthouse. Pl.’s 56.1 ¶ 33. Several court officers were standing nearby. Id. At some point that
afternoon, Officer Hirschman exited the courthouse, and Ms. Gonzalez’s companion pointed at
him, yelling, “Is that the f***ing pig who assaulted you?”. Id. ¶¶ 34-35. Sergeant Vargas, who was
also present, handcuffed Ms. Gonzalez’s companion and escorted him into the courthouse. Id. ¶ 36.
While Sergeant Vargas was placing the handcuffs on her companion, Ms. Gonzalez reached toward
them from behind. Id. ¶ 38. Specifically, Ms. Gonzalez stated that she tried to get a book that was
in her companion’s possession by leaning toward him while he was being placed in handcuffs.
Gonzalez Dep. 246:5-23. According to Defendants, another officer present at the scene observed
what transpired, believing that Ms. Gonzalez was attempting to interfere with the arrest, relayed that
information to Officer Hirschman and instructed him to place Ms. Gonzalez under arrest.
Pl.’s 56.1 ¶ 39.3 Officer Hirschman proceeded to handcuff Ms. Gonzalez and placed her under
arrest for disorderly conduct in violation of New York Penal Law § 240.20(1) & (5). Pl.’s 56.1 ¶ 40;
Berg Decl. Exs. L, M. Sergeant Vargas, was present at the scene and took Ms. Gonzalez’s
companion into custody, but did not “physically restrain [or] seize” Ms. Gonzalez. Gonzalez Dep.
256:3-15. The charge was ultimately dismissed. Pl.’s 56.1 ¶ 41. According to Ms. Gonzalez,
Sergeant Vargas “handcuffed [her companion], and [Officer] Hirschman handcuffed [her].”
Gonzalez Dep. 256:16-18.
B. Procedural History
Ms. Gonzalez filed this action on February 3, 2015. Dkt. No. 1. She filed an amended
complaint on June 28, 2015. Dkt. No. 13. On July 20, 2015, Defendants moved to dismiss the
amended complaint. Dkt. No. 16. And on January 28, 2016 the Court granted in part and denied in
part Defendants’ motion to dismiss. Defendants moved for summary judgment on April 8, 2016.
Dkt. No. 47. The motion was fully briefed on May 13, 2016. Dkt. No. 61.
Defendants are entitled to summary judgment on a claim if they can “show[ ] that there is no
genuine dispute as to any material fact and [they are] entitled to judgment as a matter of law.” Fed.
R. Civ. P. 56(a); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986) (“[S]ummary judgment is
proper ‘if the pleadings, depositions, answers to interrogatories, and admissions on file, together
with the affidavits, if any, show that there is no genuine issue as to any material fact and that the
moving party is entitled to a judgment as a matter of law.’” (quoting former Fed. R. Civ. P. 56(c))).
A genuine dispute exists where “the evidence is such that a reasonable jury could return a verdict for
Although Ms. Gonzalez disputes this statement, her disagreement appears to be based on her inability to
recall precisely who was involved in her arrest. See, e.g., Pl.’s 56.1 ¶ 39 (citing Gonzalez Dep. 246:24-247:2
(stating that she was handcuffed but could not remember by whom)).
the nonmoving party,” while a fact is material if it “might affect the outcome of the suit under
governing law.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). “Factual disputes that are
irrelevant or unnecessary will not be counted.” Id.
To defeat a motion for summary judgment, Plaintiff “must come forward with ‘specific facts
showing that there is a genuine issue for trial.’” Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp.,
475 U.S. 574, 587 (1986) (quoting former Fed. R. Civ. P. 56(e)). “[M]ere speculation or conjecture
as to the true nature of the facts” will not suffice. Hicks v. Baines, 593 F.3d 159, 166 (2d Cir. 2010)
(internal quotation marks and citations omitted). Plaintiff “must do more than simply show that
there is some metaphysical doubt as to the material facts.” Matsushita, 475 U.S. at 586.
In determining whether there exists a genuine dispute as to a material fact, the Court is
“required to resolve all ambiguities and draw all permissible factual inferences in favor of the party
against whom summary judgment is sought.” Johnson v. Killian, 680 F.3d 234, 236 (2d Cir. 2012)
(internal quotation marks and citation omitted). The Court’s job is not to “weigh the evidence or
resolve issues of fact.” Lucente v. Int’l Bus. Machines Corp., 310 F.3d 243, 254 (2d Cir. 2002). Rather,
the Court must decide whether a rational juror could find in favor of Plaintiff. Id.
A. Claims Arising Out of the February 1, 2012 Incident
1. Excessive Force
Defendants move for summary judgment on Ms. Gonzalez’s excessive force claim arising
out of the February 1, 2012 incident. As the Court explained in its decision on Defendants’ motion
to dismiss, “[t]he Fourth Amendment prohibits the use of excessive force in making an arrest, and
whether the force used is excessive is to be analyzed under that Amendment’s ‘reasonableness’
standard.” Brown v. City of New York, 798 F.3d 94, 100 (2d Cir. 2015) (quoting Graham v. Connor, 490
U.S. 386, 395 (1989)) (internal quotation marks omitted). To determine whether the force used in a
given arrest is reasonable, courts pay “careful attention to the facts and circumstances of each
particular case,” and judge the “reasonableness” of the arrest “from the perspective of a reasonable
officer on the scene, rather than with the 20/20 vision of hindsight.” Id. (quoting Graham, 490 U.S.
at 396). In analyzing excessive force claims arising out of the use of handcuffs, courts in this circuit
frequently consider “(1) whether the handcuffs were unreasonably tight; (2) whether the defendants
ignored the plaintiff’s pleas that the handcuffs were too tight; and (3) the degree of injury to the
wrists.” Gonzalez v. City of New York, No. 14 Civ. 7721 (LGS), 2015 WL 6873451, at *9 (S.D.N.Y.
Nov. 9, 2015).
“The injury requirement is particularly important, because in order to be effective, handcuffs
must be tight enough to prevent the arrestee’s hands from slipping out.” Morocho v. New York City,
No. 13 Civ. 4585 (KPF), 2015 WL 4619517, at *7-8 (S.D.N.Y. July 31, 2015) (internal quotations
and citations omitted). “‘There is a consensus among courts in this circuit that tight handcuffing
does not constitute excessive force unless it causes some injury beyond temporary discomfort.’”
Franks v. New Rochelle Police Dep’t, No. 13 CIV. 636 ER, 2015 WL 4922906, at *11 (S.D.N.Y. Aug. 18,
2015) (quoting Lynch ex rel. Lynch v. City of Mount Vernon, 567 F. Supp. 2d 459, 468 (S.D.N.Y. 2008)
(collecting cases)). Although to prevail on an excessive force claims for the use of handcuffs a
plaintiff’s injuries “need not be ‘severe or permanent,” they “must be more than merely de minimis.”
Usavage v. Port Auth. of N.Y. & New Jersey, 932 F. Supp. 2d 575, 592 (S.D.N.Y. 2013) (quoting Vogeler
v. Colbath, No. 04 Civ. 6071, 2005 WL 2482549, at *9 (S.D.N.Y. Oct. 6, 2005)); see also Mesa v. City of
New York, No. 09 Civ. 10464, 2013 WL 31002, at *18 (S.D.N.Y. Jan. 3, 2013) (“[W]hile a sustained
injury that requires doctors’ visits is not a necessary element of a successful excessive force claim,
where a plaintiff suffers from de minimis injury, it is more difficult to establish that the force used was
excessive in nature.” (citations omitted)). Courts have typically found handcuffing that resulted in
scarring or nerve damage to satisfy the injury requirement of an excessive force claim. See, e.g.,
Washpon v. Parr, 561 F. Supp. 2d 394, 407 (S.D.N.Y. 2008) (denying defendants’ motion for summary
judgment on plaintiff’s excessive force claims where plaintiff suffered scarring from tight handcuffs);
Simpson v. Saroff, 741 F. Supp. 1073, 1078 (S.D.N.Y. 1990) (same); Esmont v. City of New York, 371 F.
Supp. 2d 202, 214-15 (E.D.N.Y. 2005) (“Placing handcuffs on an arrestee tight enough to cause
nerve damage may, however, constitute excessive force in violation of the Fourth Amendment.”).
The undisputed facts do not support Ms. Gonzalez’s excessive force claim in connection
with her February 1, 2012 arrest. Ms. Gonzalez maintains that her “head was forced into a wall,”
that she was dragged down the hall, and that the handcuffs “cut into her wrists.” Pl.’s Mem. of Law
in Opp’n to Mot. for Summ. J. of Defs. (“Pls. Opp’n”), Dkt. No. 47, at 8. However, she expressly
disavowed any physical injury from the incident, stating that her claims are limited to “garden variety
emotional distress” and include “no physical injury.” Berg Decl., Ex. N ¶ 5. Ms. Gonzalez’s
disavowal, coupled with her deposition testimony that she did not seek medical treatment for any
injuries and that the handcuffs only left some marks on her wrists, supports a finding that, to the
extent that she suffered any injury, it was de minimis and, therefore, insufficient to support a claim of
excessive force.4 See, e.g., Lin v. City of N.Y., No. 14 CIV. 9994 (PAE), 2016 WL 7439362, at *11
(S.D.N.Y. Dec. 21, 2016) (granting summary judgment in favor of defendants on a claim of
excessive force from use of handcuffs because plaintiff’s injuries were de minimis as she complained
only of swollen and red wrists); Rincon v. City of New York, No. 03 Civ. 8276 (LAP), 2005 WL 646080,
In support of their motion, Defendants submitted footage captured by two courthouse security cameras.
See Dkt. No. 56. The video tells a different story than that described by Ms. Gonzalez. The video shows an
officer walking Ms. Gonzalez down the hallway and toward the elevator bank; Ms. Gonzalez appears
alongside the officer, walking upright, clearly not being dragged. Ms. Gonzalez is then walked into an
elevator and faces the wall. She is being held by two female officers who are not named as defendants in the
complaint. Based on the Court’s review of the video, to the extent Ms. Gonzalez’s arrest involved any force
at all, it was minimal. While the Court does not rely on its review of the video in drawing conclusions here,
relying instead on the documentary evidence and testimony submitted in support of Defendants’ motion, the
Court notes that the videotape of the incident captures what appears to be a routine arrest, not an arrest
involving excessive force.
at *5 (S.D.N.Y. Mar. 21, 2005) (“Aside from the swelling in her wrist, Plaintiff does not allege that
Defendants caused any other injuries. Plaintiff’s allegations are de minimis and simply do not amount
to a constitutional violation.”); Sulkowska v. City of New York, 129 F. Supp. 2d 274, 290-91 (S.D.N.Y.
2001) (finding that testimony that handcuffs were tight and that the elderly arrestee “was pushed or
dragged out of the bar and to the police car” did not establish a claim for excessive force because “it
was not facially unreasonable to restrain plaintiff’s arms and place her in handcuffs, even though she
was of advanced age”).
2. False Arrest
a. Probable Cause
In analyzing claims for false arrest brought under § 1983, courts in this circuit “‘generally
look[ ] to the law of the state in which the arrest occurred.’” Russo v. City of Bridgeport, 479 F.3d 196,
203 (2d Cir. 2007) (quoting Davis v. Rodriguez, 364 F.3d 424, 433 (2d Cir. 2004)). “A section 1983
claim for false arrest is substantially the same as a claim for false arrest under New York law.”
Simpson v. City of New York, 793 F.3d 259, 265 (2d Cir. 2015) (quoting Jenkins v. City of New York, 478
F.3d 76, 84 (2d Cir. 2007)). To state a claim for false arrest under New York law, a plaintiff must
show that: “(1) the defendant intended to confine [the plaintiff], (2) the plaintiff was conscious of
the confinement, (3) the plaintiff did not consent to the confinement, and (4) the confinement was
not otherwise privileged.” Singer v. Fulton County Sheriff, 63 F.3d 110, 118 (2d Cir. 1995) (internal
quotation marks omitted).
“The existence of probable cause to arrest . . . is a complete defense to an action for false
arrest, whether that action is brought under state law or under § 1983.” Gonzalez v. City of Schenectady,
728 F.3d 149, 155 (2d Cir. 2013) (quoting Weyant v. Okst, 101 F.3d 845, 852 (2d Cir. 1996) (internal
quotation marks and citation omitted)). “[P]robable cause to arrest exists when the officers have
knowledge or reasonably trustworthy information of facts and circumstances that are sufficient to
warrant a person of reasonable caution in the belief that the person to be arrested has committed or is
committing a crime.” Id. (emphasis in original). The test for probable cause is an objective one and
“depends upon the reasonable conclusion to be drawn from the facts known to the arresting officer
at the time of the arrest.” Zellner v. Summerlin, 494 F.3d 344, 369 (2d Cir. 2007). “[W]hether or not
probable cause existed may be determinable as a matter of law if there is no dispute as to the
pertinent events and the knowledge of the [arresting] officers.” Weyant, 101 F.3d at 852.
“Once officers possess facts sufficient to establish probable cause, they are neither required
nor allowed to sit as prosecutor, judge or jury,” as “[t]heir function is to apprehend those suspected
of wrongdoing, and not to finally determine guilt through a weighing of the evidence.” Krause v.
Bennett, 887 F.2d 362, 372 (2d Cir. 1989). “It is therefore of no consequence that a more thorough
or more probing investigation might have cast doubt upon the situation.” Id. at 371 (internal
quotation marks omitted); see also Panetta v. Crowley, 460 F.3d 388, 395-96 (2d Cir. 2006) (“[T]he fact
that an innocent explanation may be consistent with the facts alleged . . . does not negate probable
cause, and an officer’s failure to investigate an arrestee’s protestations of innocence generally does
not vitiate probable cause.” (citation and internal quotation marks omitted)); Ricciuti v. N.Y.C. Transit
Authority, 124 F.3d 123, 128 (2d Cir. 1997) (“Once a police officer has a reasonable basis for
believing there is probable cause, he is not required to explore and eliminate every theoretically
plausible claim of innocence before making an arrest.”).
Defendants maintain that Officer Hirschman had probable cause to arrest Ms. Gonzalez for
trespass on February 1, 2012 and, therefore, her false arrest claim with respect to that arrest fails as a
matter of law. Mem. of Law in Supp. of Defs.’ Mot. for Summ. J. (“Defs.’ Br.”) at 16. Under New
York law, “[a] person is guilty of trespass when he knowingly enters or remains unlawfully in or
upon premises.” N.Y. Penal Law § 140.05. “A person ‘enters or remains unlawfully’ in or upon
premises when he is not licensed or privileged to do so.” N.Y. Penal Law § 140.00(5). Where the
premises “are at the time open to the public”, however, a person “remains unlawfully” if “he defies a
lawful order not to enter or remain, personally communicated to him by the owner of such premises
or other authorized person.” Id.; see also Yorzinski v. City of New York., 175 F. Supp. 3d 69, 76
During the time leading up to Ms. Gonzalez’s arrest, the courthouse was open to the public.
Accordingly, to establish probable cause for arresting Ms. Gonzalez for criminal trespass,
Defendants must show that (1) there was a lawful order excluding her from the property; (2) that the
order was communicated to her by a person with authority to give the order; and (3) that Ms.
Gonzalez defied the order. Carpenter v. City of New York, 984 F. Supp. 2d 255, 265 (S.D.N.Y. 2013)
(citing People v. Munroe, 853 N.Y.S.2d 457, 458 (N.Y. Sup. App. Term 2007)) (concluding that there
was probable cause to arrest the plaintiff for trespass in a bank that was open to the public because
“a reasonable police officer was entitled to conclude that the statements of the bank employees
delivered to the protestors,” which asked them to move the protest outside the bank, “were lawful
orders excluding the protestors from continuing protest activities within the bank’s premises.”); see
also Omor v. City of New York, No. 13-CV-2439 RA, 2015 WL 857587, at *4 (S.D.N.Y. Feb. 27, 2015)
(citing Carpenter, 984 F. Supp. 2d at 265) (finding that there was probable cause to arrest the plaintiff
for trespass where he refused to leave a local government office that was open to the public after
being asked to leave the premises by at least two office staff members).
Based on the undisputed facts, the Court finds that Officer Hirschman had probable cause
to arrest Ms. Gonzalez for trespass. Ms. Gonzalez was standing inside the courthouse at the time of
her arrest. Officer Hirschman had reason to believe Ms. Gonzalez was using an audio recording
device on the courthouse premises, in violation of UCS policy. Pl.’s 56.1 ¶ 10. After informing Ms.
Gonzalez that the device was not permitted inside the courthouse, Officer Hirschman told Ms.
Gonzalez that she must leave the premises or be subject to arrest. Id. ¶ 12. Ms. Gonzalez does not
dispute that she refused to leave. In other words, Ms. Gonzalez was present on premises open to
the public, and refused to leave even after Officer Hirschman, who was authorized to do so,
personally communicated a lawful order to exit the courthouse.5
b. Qualified Immunity
Defendants also argue that Officer Hirschman is shielded from liability because he is entitled
to qualified immunity. Police officers are immune from liability in § 1983 in suits brought against
them in their individual capacities if their conduct “‘does not violate clearly established statutory or
constitutional rights of which a reasonable person would have known.’” White v. Pauly, 580 U.S. --,
No. 16-67, 2017 WL 69170, at *4 (U.S. Jan. 9, 2017) (quoting Mullenix v. Luna, 136 S. Ct. 305, 308
(2015)); see also Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). The Second Circuit has explained that
“[e]ven where the plaintiff’s federal rights and the scope of the official’s permissible conduct are
clearly established, the qualified immunity defense protects a government actor if it was ‘objectively
reasonable’ for him to believe that his actions were lawful at the time of the challenged act.” Lennon
v. Miller, 66 F.3d 416, 420 (2d Cir. 1995) (quoting Anderson v. Creighton, 483 U.S. 635, 641 (1987)); see
also Weyant, 101 F.3d at 857 (“[P]ublic officials are entitled to qualified immunity if (1) their conduct
does not violate clearly established constitutional rights, or (2) it was objectively reasonable for them
to believe their acts did not violate those rights.”).
“[A]n arresting officer is entitled to qualified immunity on claims of false arrest and
malicious prosecution if either: (a) it was objectively reasonable for the officer to believe that
5 Because the Court concludes that Officer Hirschman had probable cause to arrest Ms. Gonzalez for
trespass, it need not address Defendants’ argument that there was probable cause to arrest Ms. Gonzalez for
disorderly conduct. See Defs.’ Br. at 16-17; see also Jaegly v. Couch, 439 F.3d 149, 154 (2d Cir. 2006) (“[A] claim
for false arrest turns only on whether probable cause existed to arrest a defendant . . . it is not relevant
whether probable cause existed with respect to each individual charge, or, indeed, any charge actually invoked
by the arresting officer at the time of arrest. Stated differently, when faced with a claim for false arrest, we
focus on the validity of the arrest, and not on the validity of each charge.”) (emphasis in original).
probable cause existed, or (b) officers of reasonable competence could disagree on whether the
probable cause test was met.” Carthew v. County of Suffolk, 709 F. Supp. 2d 188, 203 (E.D.N.Y. 2010)
(citing Walczyk v. Rio, 496 F.3d 139, 163 (2d Cir. 2007); see also Simpson, 793 F.3d at 268 (stating that
an officer need only have “arguable probable cause,” which exists if either it was objectively
reasonable to believe that probable cause existed or if officers of reasonable competence could
disagree on whether probable cause existed); Posr v. Court Officer Shield #207, 180 F.3d 409, 416 (2d
Cir. 1999)). The Second Circuit has referred to the latter category as “arguable probable cause” and
described it as follows:
Arguable probable cause exists when a reasonable police officer in the same
circumstances and possessing the same knowledge as the officer in question could
have reasonably believed that probable cause existed in the light of well established
law. It is inevitable that law enforcement officials will in some cases reasonably but
mistakenly conclude that probable cause is present, and we have indicated that in
such cases those officials—like other officials who act in ways they reasonably
believe to be lawful—should not be held personally liable.
Cerrone v. Brown, 246 F.3d 194, 202-03 (2d Cir. 2001) (internal quotation marks and citations omitted)
(emphasis in original).
“This forgiving standard protects ‘all but the plainly incompetent or those who knowingly
violate the law.’” Provost v. City of Newburgh, 262 F.3d 146, 160 (2d Cir. 2001) (quoting Malley v. Briggs,
475 U.S. 335, 341 (1986)). Courts may deny motions for summary judgment on qualified immunity
grounds only where an officer’s judgment was “so flawed that no reasonable officer would have
made a similar choice.” Id. In the end, qualified immunity “protects government officials when they
make ‘reasonable mistakes’ about the legality of their actions.” Doninger v. Niehoff, 642 F.3d 334, 353
(2d Cir. 2011) (quoting Saucier v. Katz, 533 U.S. 194, 206 (2001)). To assess whether there was
arguable probable cause for an arrest, courts are reminded that police officers are “entitled to draw
reasonable inferences from the facts they possess at the time of a seizure based upon their own
experiences.” Cerrone, 246 F.3d at 203. Where conflicting versions of the facts exist, however, an
officer is entitled to qualified immunity only if “the undisputed facts and all permissible inferences
favorable to the plaintiff show . . . that officers of reasonable competence could disagree on whether
the probable cause test was met.” Robison v. Via, 821 F.2d 913, 921 (2d Cir. 1987) (emphasis added).
Even if the Court were to find that there were genuine issues of material fact as to whether
there was probable cause to arrest Ms. Gonzales, qualified immunity would still shield Officer
Hirschman from liability. Based on the undisputed facts, it was objectively reasonable for Officer
Hirschman to believe that Ms. Gonzalez, who refused to leave the premises, defied his lawful order
to leave the courthouse, and officers of reasonable competence could disagree on whether there was
probable cause to arrest Ms. Gonzalez.
In addition, the Court infers from Ms. Gonzalez’s failure to address Defendants’ qualified
immunity argument that she has abandoned this claim. As the Second Circuit has held, “in the case
of a counseled party, a court may, when appropriate, infer from a party’s partial opposition that
relevant claims or defenses that are not defended have been abandoned. Jackson v. Fed. Exp., 766
F.3d 189, 198 (2d Cir. 2014). And “‘[f]ederal courts may deem a claim abandoned when a party
moves for summary judgment on one ground and the party opposing summary judgment fails to
address the argument in any way.’” Jessamy v. City of New Rochelle, 292 F. Supp. 2d 498 (S.D.N.Y.
2003) (quoting Taylor v. City of New York, 269 F. Supp. 2d 68, 75 (E.D.N.Y. 2003)); see also Rodriguez v.
Vill. of Ossining, 918 F. Supp. 2d 230, 239 (S.D.N.Y. 2013) (dismissing plaintiff’s claims where
plaintiff failed to address defendants’ assertion of qualified immunity); Parrilla v. City of N.Y., No. 09
CIV. 8314 (SAS), 2011 WL 611849, at *1 (S.D.N.Y. Feb. 16, 2011) (“Plaintiff failed to address or
oppose Defendants’ arguments regarding municipal liability or qualified immunity. As a
consequence, plaintiff’s Section 1983 claim is deemed abandoned.”). Consequently, even if disputed
issues of material fact precluded granting Defendants’ motion for summary judgment on Ms.
Gonzalez’s false arrest claim, Ms. Gonzalez did not oppose Defendants’ qualified immunity
argument and has, therefore, abandoned that claim. Accordingly, the Court concludes that
Defendants are entitled to summary judgment with respect to Ms. Gonzalez’s February 1, 2012 false
arrest claim on that basis as well.
3. First Amendment Retaliation
Ms. Gonzalez argues that her attendance at the hearing was expressive conduct protected by
the First Amendment and that she was arrested in retaliation for exercising her right to free speech.
Pl.’s Opp’n at 10-11. “To prevail on this free speech claim, plaintiff must prove: (1) he has an
interest protected by the First Amendment; (2) defendants’ actions were motivated or substantially
caused by his exercise of that right; and (3) defendants’ actions effectively chilled the exercise of his
First Amendment right.” Curley v. Vill. of Suffern, 268 F.3d 65, 73 (2d Cir. 2001) (citing Connell v.
Signoracci, 153 F.3d 74, 79 (2d Cir. 1998)).
“The existence of probable cause,” however, “will defeat . . . a First Amendment claim that
is premised on the allegation that defendants prosecuted a plaintiff out of a retaliatory motive, in an
attempt to silence her.” Fabrikant v. French, 691 F.3d 193, 215 (2d Cir. 2012); see also Curley, 268 F.3d
at 73 (concluding that a finding of probable cause obviates the need to undertake “an inquiry into
the underlying motive for the arrest”) (citing Singer, 63 F.3d at 120, Mozzochi v. Borden, 959 F.2d 1174,
1179–80 (2d Cir. 1992)). As the Second Circuit reasoned, “‘[a]n individual does not have a right
under the First Amendment to be free from a criminal prosecution supported by probable cause,’
even if that prosecution ‘is in reality an unsuccessful attempt to deter or silence criticism of the
government.’” Fabrikant, 691 F.3d at 215 (quoting Mozzochi, 959 F.2d at 1180); see also Singer, 63 F.3d
at 120. Accordingly, because Officer Hirschman had probable cause to arrest Ms. Gonzalez—or, at
a minimum, arguable probable cause—Defendants are entitled to summary judgment on Ms.
Gonzalez’s First Amendment retaliation claim. See, e.g. Lawtone-Bowles v. Katz, No. 14-CV-606 (CS),
2016 WL 6834018, at *10 (S.D.N.Y. Nov. 17, 2016) (granting defendants’ motion for summary
judgment on plaintiff’s First Amendment retaliation claims because her guilty plea following her
arrest constituted “conclusive evidence that an arrest was supported by the requisite probable
cause,” which “serves as a complete defense to any claim of First Amendment retaliation based on
that arrest”) (internal quotation marks, citations, and alternations omitted); Marlin v. City of New York,
No. 15 CIV. 2235 (CM), 2016 WL 4939371, at *14 (S.D.N.Y. Sept. 7, 2016) (concluding that
plaintiff’s First Amendment retaliation claims must be dismissed following a finding that plaintiff’s
arrest was supported by probable cause or, at least, arguable probable cause); Corsini v. Brodsky, No.
13-cv-2587-LTS-MHD, 2015 WL 3456781, at *8 (S.D.N.Y. May 27, 2015) (dismissing plaintiff’s
First Amendment retaliation claim where the pleadings demonstrated that there was probable cause
for the arrests).
B. Claims Arising Out of the April 10, 2012 Arrest
1. False Arrest
As discussed above, probable cause to arrest is a complete defense to a false arrest claim.
Gonzalez, 728 F.3d at 155 (2d Cir. 2013). On April 10, 2012, Ms. Gonzalez was arrested for violating
New York Penal Law § 240.20(2), pursuant to which a “person is guilty of disorderly conduct when,
with intent to cause public inconvenience, annoyance or alarm, or recklessly creating a risk thereof
. . . [h]e makes unreasonable noise.” She was also arrested for violating Section 54.3 of the New
York State Health Code, which requires that all self-defense spray devices bear a warning label
stating, inter alia:
Warning: The use of this substance or device for any purpose other than selfdefense is a criminal offense under the law. The contents are dangerous - use with
care. This device shall not be sold by anyone other than a licensed or authorized
dealer. Possession of this device by a person under the age of 18 or by anyone who
has been convicted of a felony or assault is illegal. Violators may be prosecuted
under the law.
N.Y. Comp. Codes R. & Regs. tit. 10, § 54.3.
Based on the undisputed facts, there was probable cause, or, at least, arguable probable
cause, to arrest Ms. Gonzalez for disorderly conduct. The offense has three elements: The
defendant’s conduct must (1) “match at least one of the descriptions [of disorderly conduct] set
forth in the statute”; (2) be “public” in nature; and (3) “be done with ‘intent to cause public
inconvenience, annoyance or alarm’ or with recklessness as to a ‘risk thereof.’” Provost, 262 F.3d at
157 (quoting N.Y. Penal Law § 240.20). All three elements are met here.
In her opposition, Ms. Gonzalez argues that “she did not yell, although she did question the
basis for the search of her bag.” Pl.’s Opp’n at 11. But Ms. Gonzalez’s own deposition testimony
contradicts this description of the events. She testified that she wanted to make her objection to her
bag search audible to the people in the vicinity, that she was “speaking loudly enough that everyone
could hear [her],” and that she refused to lower her voice when Sergeant Vargas asked her to do so
because she “want[ed] everyone [there] to understand what was happening.” Gonzalez Dep. 220:616; 223:16-23. Such conduct is consistent with how courts in this district have interpreted
“unreasonable noise” in the context of New York Penal Law § 240.20(2) and supports a finding that
Officer Dauria had probable cause to arrest Ms. Gonzalez for that offense. See, e.g., Leibovitz v. Barry,
No. 15-CV-1722 (KAM), 2016 WL 5107064, at *9-10 (E.D.N.Y. Sept. 20, 2016) (dismissing a false
arrest claim because there was probable cause to arrest plaintiff for violating § 240.20(2) when he
“used a ‘voice of consternation’ for several minutes in order to attract members of the general public
‘witnesses’ while he continued recording court officers”). And because it was objectively reasonable
for Officer Dauria to believe that probable cause existed to arrest Ms. Gonzalez for disorderly
conduct—and reasonable officers could disagree on whether the probable cause test was met—
Officer Dauria is entitled to qualified immunity.6 Ms. Gonzalez’s false arrest claim arising out of her
April 1, 2012 arrest, therefore, fails as a matter of law.7
2. First Amendment Retaliation
For the reasons discussed above, Ms. Gonzalez’s First Amendment retaliation claim arising
out of the April 10, 2012 incident fails because Officer Dauria had probable cause to arrest her for
disorderly conduct. See Fabrikant, 691 F.3d at 215; see also supra, Part III(A)(3). Ms. Gonzalez’s April
10, 2012 First Amendment claim fails for the same reasons as well.
C. Claims Arising out of the July 12, 2012
1. False Arrest
Ms. Gonzalez’s July 12, 2012 claims are brought against both Officer Hirschman and
Sergeant Vargas. The Court discusses the claims against each below.
a. Officer Hirschman
Ms. Gonzalez was arrested for the third time for violating sections 1 and 5 of New York
Penal Law § 240.20, pursuant to which “[a] person is guilty of disorderly conduct when, with intent
to cause public inconvenience, annoyance or alarm, or recklessly creating a risk thereof: (1) engages
in fighting or in violent, tumultuous or threatening behavior; or . . . (5) [h]e obstructs vehicular or
pedestrian traffic.” N.Y. Penal Law § 240.20(1), (5).
The Court notes that, here, too, Ms. Gonzalez failed to address Defendants’ qualified immunity argument,
from which the Court infers that she had abandoned this claim. See Jackson, 766 F.3d at 198; see also supra
Part III (A)(2)(b).
Because the Court concludes that there was probable cause to arrest Ms. Gonzalez for disorderly conduct, it
need not address whether Officer Dauria had probable cause to arrest her for violating Section 54.3 of the
New York State Health Code. Nor does the Court need to address Plaintiff’s argument that Defendants did
not “voucher the canister or preserve the canister as evidence . . . because it proved their own misconduct, by
showing that the canister was properly labeled.” Pl.’s Opp’n at 11. The Court observes, however, that Ms.
Gonzalez testified that her pepper spray had a small tag that warned carriers from touching their eyes if their
hands came into contact with the spray. Gonzalez Dep. 206:12-24, 220:17:221-15. This warning does not
appear to satisfy the labeling requirements set forth in Section 54.3. See N.Y. Comp. Codes R. & Regs. tit. 10,
The undisputed facts establish that Officer Hirschman had probable cause to arrest Ms.
Gonzalez for violation of § 240.20(1). Ms. Gonzalez does not dispute that she attempted to retrieve
a book from her companion, who was being handcuffed by Sergeant Vargas, and that she leaned
toward him in order to reach it. Gonzalez Dep. 246:5-23. Based on her own account, therefore, the
Court finds that the reasonable conclusion to be drawn from the facts known to Officer Hirschman
at the time was that Ms. Gonzalez was attempting to physically interfere with her companion’s
arrest, which Officer Hirschman could reasonably have viewed as threatening behavior. Therefore,
the Court concludes that Officer Hirschman had probable cause to arrest Ms. Gonzalez for
Regardless, the Court concludes that Officer Hirschman is entitled to qualified immunity.
Under the forgiving arguable probable cause standard, it was objectively reasonable for Officer
Hirschman to believe that Ms. Gonzalez was engaged in threatening behavior that could interfere
with Sergeant Vargas’s arrest procedure and, similarly, officers of reasonable competence could
disagree on whether there was probable cause to arrest her for disorderly conduct based on the
Defendants argue—and Ms. Gonzalez did not contest—that it was permissible for Officer Hirschman to
rely on information relayed to him by another officer. The Court agrees. Probable cause to arrest may exist
even if the arresting officers do not possess firsthand knowledge of the suspect’s alleged criminal activity.
“The existence of probable cause need not be assessed on the basis of the knowledge of a single officer.”
Zellner v. Summerlin, 494 F.3d 344, 369 (2d Cir. 2007).
[A]n arrest . . . is permissible where the actual arresting or searching officer lacks the specific
information to form the basis for probable cause or reasonable suspicion but sufficient
information to justify the arrest or search was known by other law enforcement officials
initiating or involved with the investigation.
Id. (quoting United States v. Colon, 250 F.3d 130, 135 (2d Cir. 2001)); see also Annunziata v. City of New York, No.
06 CIV. 7637 (SAS), 2008 WL 2229903, at *3 (S.D.N.Y. May 28, 2008) (“The ‘fellow officer’ rule provides
that even if an arresting officer lacks personal knowledge sufficient to establish probable cause, the arrest will
be lawful if the officer acts upon the direction of or as a result of communication with a superior or [fellow]
officer or another police department provided that the police as a whole were in possession of information
sufficient to constitute probable cause to make the arrest.”) (internal quotation marks and citations omitted).
b. Sergeant Vargas
Because Sergeant Vargas was not involved in Ms. Gonzalez’s arrest that day, the claims
against him must be dismissed. Absent any personal involvement, an individually named defendant
cannot be held liable for a plaintiff’s alleged § 1983 claim. Grullon v. City of New Haven, 720 F.3d 133,
138 (2d Cir. 2013). With respect to a claim for false arrest, this means that each individual must
have been personally involved in the arrest in order to be held liable. See Colon, 58 F.3d at 873. The
Second Circuit has defined “personal involvement” to mean direct participation, such as “personal
participation by one who has knowledge of the facts that rendered the conduct illegal,” or indirect
participation, such as “ordering or helping others to do the unlawful acts.” Provost, 262 F.3d at
(citing Gaston v. Coughlin, 249 F.3d 156, 165-66 (2d Cir. 2001).
Although Ms. Gonzalez does not dispute that Sergeant Vargas was not personally involved
in her arrest, she argues that he is liable for failing to intervene in her unlawful arrest. Pl.’s Opp’n at
13. However, a failure to intervene claim “requires the existence of an underlying constitutional
violation—such as a false arrest—or is excused by the existence of probable cause to make an
arrest.” Ladoucier v. City of New York, No. 10 CIV. 05089 RJH, 2011 WL 2206735, at *4 (S.D.N.Y.
June 6, 2011) (citing Taveres v. City of New York, No. 08 Civ. 3782, 2010 WL 234974, at *4 (S.D.N.Y.
Jan. 19, 2010) (concluding that a failure to intervene claim requires, inter alia, that officers failed to
intervene to prevent other officers’ constitutional violation)); see also Lucky v. City of New York, No. 03
CIV.1983(DLC), 2004 WL 2088557, at *7 (S.D.N.Y. Sept. 20, 2004), aff’d, 140 F. App’x 301 (2d Cir.
2005) (dismissing plaintiff’s failure-to-intervene claim on summary judgment after finding that
defendants demonstrated that there was probable cause to arrest plaintiff, which “defeat[ed]
[plaintiff’s] claim that any of the defendants had a duty to prevent that arrest.”).9 Accordingly,
Defendants argue that Ms. Gonzalez’s failure-to-intervene claim must be dismissed because she did not
plead a separate failure-to-intervene claim in her amended complaint. Defs.’ Reply at 4. Defendants are
correct that “it is inappropriate to consider claims not pleaded in the complaint in opposition to summary
because the Court has concluded that Officer Hirschman had at least arguable probable cause to
arrest Ms. Gonzalez on July 12, 2012, any claims against Sergeant Vargas fail as a matter of law.
2. First Amendment Retaliation
Ms. Gonzalez’s First Amendment retaliation claim in connection with the July 10, 2012
incidents fails for the precisely the same reasons her two other First Amendment claims failed,
namely, that her arrest was supported by probable cause. See supra, Parts. III(A)(3) and (B)(2). The
Court notes, however, that Ms. Gonzalez appears to argue that she should prevail on this claim
because her companion’s remarks—pointing at Officer Hirschman and asking, “Is that the f***ing pig
who assaulted you?”—are protected under the First Amendment. Pl.’s Opp’n at 13-14. Ms.
Gonzalez goes as far as arguing that she and her companion “were falsely arrested for that First
Amendment-protected activity, in violation of the First Amendment.” Id. at 14. Ms. Gonzalez is
the only plaintiff in this action and has provided no legal or factual basis for the Court to conclude
that her companion’s arrest following his comment was a restriction on her own free speech rights.
For the foregoing reasons, Defendants’ motion for summary judgment is granted in its
The Clerk of Court is directed to enter judgment in favor of Defendants and to close this
Dated: January 31, 2017
New York, New York
_ __ ___________
GREGORY H. WOODS
United States District Judge
judgment.” Scott v. City of N.Y. Dep’t of Correction, 641 F. Supp. 2d 211, 229 (S.D.N.Y. 2009), aff’d, 445 F.
App’x 389 (2d Cir. 2011). Because the Court already concluded that probable cause defeated this claim, it
need not address Defendants’ alternative ground for dismissal.
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